Gillis et al. v. BCE Inc. et al., (2015) 358 N.S.R.(2d) 39 (CA)

• Judge: Bryson, Scanlan and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 19, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 358 N.S.R.(2d) 39 (CA);2015 NSCA 32

Gillis v. BCE Inc. (2015), 358 N.S.R.(2d) 39 (CA);

    1131 A.P.R. 39

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.015

BCE Inc., Bell Canada, Bell Mobility Cellular Inc., Bell Mobility Inc., Microcell Telecommunications Inc., Rogers Communications Inc., Rogers Communications Partnership, Fido Solutions Inc., Rogers Cantel Inc., Rogers Wireless Inc., and Rogers AT&T Wireless (appellants) v. John Gillis, Jane Doe XVIII, John Doe Ltd. XVIII, John Doe XIX, and John Doe XXI (respondents)

(CA 430654; 2015 NSCA 32)

Indexed As: Gillis et al. v. BCE Inc. et al.

Nova Scotia Court of Appeal

Bryson, Scanlan and Bourgeois, JJ.A.

April 9, 2015.

Summary:

The plaintiffs' proposed class action sought remedies in relation to the payment by consumers of "system access fees" as against a number of telecommunications service providers. Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada. The defendants Bell and Rogers moved for orders dismissing or permanently staying the action as an abuse of process. Following the hearing of the motion, the defendants moved under rule 88.22(2)(c) for leave to present further evidence on the motion.

The Nova Scotia Supreme Court, in a decision reported at (2014), 348 N.S.R.(2d) 276; 1100 A.P.R. 276, denied both motions. The parties made submissions on costs.

The Nova Scotia Supreme Court, in a decision reported at (2014), 350 N.S.R.(2d) 226; 1105 A.P.R. 226, awarded the plaintiffs costs of $9,000, all inclusive. Bell and Rogers sought leave to appeal from the decision denying the motion for an order dismissing or permanently staying the action as an abuse of process.

The Nova Scotia Court of Appeal granted leave to appeal and allowed the appeal, entering a permanent and unconditional stay of proceedings. The order for costs below was reversed and the defendants were awarded costs of the appeal of $9,000.

Conflict of Laws - Topic 8

General - Doctrine of comity - [See eighth Courts - Topic 2015 ].

Conflict of Laws - Topic 9202

Practice - General - Comity between provinces - [See eighth Courts - Topic 2015 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal allowed the defendants' appeal, finding that there had been no intention to prosecute the Nova Scotia action - Absent an intent to prosecute the Nova Scotia claims, bringing an action in Nova Scotia served no proper purpose - Filing a claim in multiple jurisdictions, or a single claim in a single jurisdiction, was improper if there was no intention to advance that litigation - The absence of intention to prosecute the Nova Scotia claim or the attempt at re-litigation weighed against the plaintiffs on the issue of abuse of process - The action was permanently and unconditionally stayed - See paragraphs 36 to 41.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal allowed the defendants' appeal, finding that there had been an "egregious" delay in advancing the action - Commencing multiple class actions and then doing nothing was an abuse of process - The inordinate delay was reflective of the fact that there was never an intention to prosecute the claim in Nova Scotia, unless the other actions were unsuccessful - The action was permanently and unconditionally stayed - See paragraphs 42 to 48.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal, in allowing the defendants' appeal, indicated that, at best, the "opt in versus opt out" distinction (Nova Scotia was an "opt out" jurisdiction) was a neutral consideration as it related to the abuse of process issue - If the "opt out" regime of a particular province trumped bad behaviour in other Canadian jurisdictions, plaintiffs could act irresponsibly elsewhere, relying on the court in their home province to come to their rescue - "Opt in versus opt out" did not trump a proper abuse of process analysis - The action was permanently and unconditionally stayed - See paragraphs 49 to 59.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan in relation to a claim for unjust enrichment - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - Rosinski, J., indicated that the Saskatchewan proceeding might have a fatal flaw in that it was certified only on one issue, where the Nova Scotia action pled other causes of action - The Nova Scotia Court of Appeal, in allowing the defendants' appeal, indicated that this analysis was "a clear error of law" as it encouraged re-litigation rather than respecting decisions affecting the same parties elsewhere - Losing parties would always welcome another opportunity to argue their case - Doing so in Nova Scotia was no less abusive than doing so in Saskatchewan, which limited the plaintiffs to unjust enrichment as a cause of action - The action was permanently and unconditionally stayed - See paragraphs 60 to 62.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal, in allowing the defendants' appeal, indicated that the actions of the plaintiffs' counsel (MLG) were relevant to the abuse of process issue - MLG was trying to do an end run around what courts in other jurisdictions had ruled - From the beginning they knew of the opt-in versus the opt-out differences in various provinces - Now that the Saskatchewan courts had refused to include non-residents on an opt-out basis, MLG was trying to circumvent that ruling - Further, rulings in other jurisdictions had determined that the multiplicity of proceedings was an abuse of process - The action was permanently and unconditionally stayed - See paragraphs 63 to 68.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal, in allowing the defendants' appeal, rejected the plaintiffs' assertion that maintaining carriage of an action was a valid reason for commencing identical actions in numerous jurisdictions - It was an abuse of process to file a claim in Nova Scotia simply to maintain carriage - The action was permanently and unconditionally stayed - See paragraphs 69 to 74.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal, in allowing the defendants' appeal, rejected the plaintiffs' argument that "filing the statement of claim in Nova Scotia allowed the limitation period to toll" - It was not appropriate to file an action for the sole purpose of tolling a limitation if there was no intention to prosecute the case - This was an abuse of process - The action was permanently and unconditionally stayed - See paragraphs 75 and 76.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - In 2004, the plaintiffs filed a proposed class action, seeking remedies against a number of telecommunications service providers - Similar actions had been filed by the plaintiffs' counsel in other jurisdictions in Canada - Certification had been granted in Saskatchewan - Nova Scotia residents could participate in that action by "opting in" - The defendants Bell and Rogers moved to dismiss or permanently stay the Nova Scotia action as an abuse of process - The motion was denied - The Nova Scotia Court of Appeal, in allowing the defendants' appeal, raised the issue of comity - To allow the action in Nova Scotia to continue would permit a collateral attack on the Saskatchewan decision which refused to allow certification for non-residents on an opt-out basis - That would be an extraordinary abuse of process and would undermine the proper administration of justice - The action was permanently and unconditionally stayed - See paragraphs 77 to 83.

Practice - Topic 210.2

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Procedure - Multiple or competing actions (incl. appointment of lead counsel) - [See all Courts - Topic 2015 ].

Practice - Topic 5277.1

Trials - Stay of proceedings - Abuse of process - [See all Courts - Topic 2015 ].

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - [See eighth Courts - Topic 2015 ].

Cases Noticed:

Frey et al. v. BCE Inc. et al. (2007), 312 Sask.R. 4; 2007 SKQB 328, refd to. [para. 9].

Chatfield v. Bell Mobility Inc. et al. (2014), 440 Sask.R. 201; 2014 SKQB 82, refd to. [para. 10].

Frey et al. v. BCE Inc. et al. (2011), 377 Sask.R. 156; 528 W.A.C. 156; 2011 SKCA 136, leave to appeal dismissed (2012), 436 N.R. 397; 405 Sask.R. 320; 563 W.A.C. 320 (S.C.C.), refd to. [para. 10].

Microcell Communications Inc. v. Frey - see Frey et al. v. BCE Inc. et al.

Ileman v. Rogers Communications Inc. et al., [2014] B.C.T.C. Uned. 1002; 2014 BCSC 1002, refd to. [para. 12].

Drover et al. v. BCE Inc. et al., [2013] B.C.T.C. Uned. 1341; 2013 BCSC 1341, affd. [2015] B.C.A.C. TBEd. MR.060; 2015 BCCA 132, refd to. [para. 12].

Pappas et al. v. BCE Inc. et al., [2014] A.R. Uned. 170; 2014 ABQB 122, refd to. [para. 13].

Turner v. Bell Mobility Inc. et al., [2015] A.R. TBEd. MR.127; 2015 ABQB 169, not folld. [para. 13].

Hafichuk-Walkin et al. v. BCE Inc. et al. (2014), 308 Man.R.(2d) 215; 2014 MBQB 175, agreed with [para. 14].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, refd to. [para. 17].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 24].

Day v. Guarantee Co. of North America (2003), 212 N.S.R.(2d) 177; 665 A.P.R. 177; 2003 NSCA 13, refd to. [para. 25].

Wagner v. Day - see Day v. Guarantee Co. of North America.

ABN AMRO Bank Canada v. Collins Barrow et al. (1997), 161 N.S.R.(2d) 48; 477 A.P.R. 48 (C.A.), refd to. [para. 29].

ABN AMRO Bank Canada v. Wackett - see ABN AMRO Bank Canada v. Collins Barrow et al.

Bouchanskaia v. Bayer Inc., [2003] B.C.T.C. 1306; 2003 BCSC 1306, refd to. [para. 32].

Coleman et al. v. Bayer Inc. et al., [2004] O.T.C. 403 (Sup. Ct.), refd to. [para. 32].

Walls et al. v. Bayer Inc. (2005), 189 Man.R.(2d) 262; 2005 MBQB 3, leave to appeal refused (2005), 195 Man.R.(2d) 293; 351 W.A.C. 293; 2005 MBCA 93, leave to appeal refused (2005), 349 N.R. 394; 212 Man.R.(2d) 318; 389 W.A.C. 318 (S.C.C.), refd to. [para. 32].

Pardy et al. v. Bayer Inc. (2004), 237 Nfld. & P.E.I.R. 179; 703 A.P.R. 179; 2004 NLSCTD 72, leave to appeal refused (2005), 246 Nfld. & P.E.I.R. 157; 731 A.P.R. 157; 2005 NLCA 20, leave to appeal refused (2005), 348 N.R. 199; 257 Nfld. & P.E.I.R. 359; 776 A.P.R. 359 (S.C.C.), refd to. [para. 32].

Wheadon v. Bayer Inc. - see Pardy et al. v. Bayer Inc.

Dufour v. Bayer Inc., [2004] J.Q. No. 11125 (S.C.), refd to. [para. 32].

Lamb et al. v. Bayer Inc. (2003), 242 Sask.R. 80; 2003 SKQB 442, refd to. [para. 32].

Ward v. Canada (Attorney General) et al. (2007), 220 Man.R.(2d) 224; 407 W.A.C. 224; 2007 MBCA 123, refd to. [para. 32].

Brooks v. Canada (Attorney General) et al. (2009), 347 Sask.R. 158; 2009 SKQB 509, refd to. [para. 32].

Ring v. Canada (Attorney General) et al. (2010), 297 Nfld. & P.E.I.R. 86; 918 A.P.R. 86; 2010 NLCA 20, refd to. [para. 32].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 32].

Sparvier et al. v. Canada (Attorney General) (2006), 290 Sask.R. 111; 2006 SKQB 533, affd. (2007), 293 Sask.R. 54; 397 W.A.C. 54; 2007 SKCA 37, refd to. [para. 32].

Baxter et al. v. Canada (Attorney General) et al., [2006] O.T.C. 1346; 83 O.R.(3d) 481 (Sup. Ct.), refd to. [para. 32].

Killough et al. v. Canadian Red Cross Society et al., [2007] B.C.T.C. Uned. 453; 2007 BCSC 836, refd to. [para. 32].

McCarthy et al. v. Canadian Red Cross Society et al., [2001] O.T.C. 470 (Sup. Ct.), refd to. [para. 32].

Parsons et al. v. Canadian Red Cross Society et al. (1999), 103 O.T.C. 161 (Sup. Ct.), refd to. [para. 32].

Adrian et al. v. Canada (Attorney General) et al. (2003), 334 A.R. 349; 2003 ABQB 142, refd to. [para. 32].

Joel v. Menu Foods Genpar Ltd. et al., [2007] B.C.T.C. Uned. F55; 2007 BCSC 1482, refd to. [para. 32].

Whiting et al. v. Menu Foods Operating Limited Partnership et al., [2007] O.T.C. Uned. L69 (Sup. Ct.), refd to. [para. 32].

Englund et al. v. Pfizer Canada Inc. et al. (2007), 299 Sask.R. 298; 408 W.A.C. 298; 2007 SKCA 62, refd to. [para. 34].

Boehringer Ingelheim (Canada) Ltd. v. Englund - see Englund et al. v. Pfizer Canada Inc. et al.

Niagara North Condominium Corp. No. 125 v. Waddington (2007), 222 O.A.C. 66; 2007 ONCA 184, refd to. [para. 36].

Grovit et al. v. Doctor et al., [1997] 2 All E.R. 417 (H.L.), refd to. [para. 40].

Drover et al. v. BCE Inc. et al., [2013] B.C.T.C. Uned. 50; 2013 BCSC 50, refd to. [para. 43].

Duzan v. GlaxoSmithKline Inc. et al. (2011), 372 Sask.R. 108; 2011 SKQB 118, refd to. [para. 46].

Turon et al. v. Abbott Laboratories Ltd. et al., [2011] O.T.C. Uned. 4343; 2011 ONSC 4343, affd. [2011] O.A.C. Uned. 513; 2011 ONSC 4676 (Div. Ct.), appld. [para. 48].

Sorenson v. easyhome Ltd. et al., [2013] O.T.C. Uned. 4017; 2013 ONSC 4017, refd to. [para. 50].

Tesluk et al. v. Boots Pharmaceutical plc et al., [2002] O.T.C. 233 (Sup. Ct.), refd to. [para. 50].

Sutherland v. Boots Pharmaceutical plc - see Tesluk et al. v. Boots Pharmaceutical plc et al.

Alfresh Beverages Canada Corp. v. Hoechst AG et al., [2002] O.T.C. 19 (Sup. Ct.), refd to. [para. 50].

Serhan Estate et al. v. Johnson & Johnson et al., [2011] O.T.C. Uned. 128; 2011 ONSC 128, refd to. [para. 50].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 60].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 61].

Dixon et al. v. Stork Craft Manufacturing Inc. et al., [2013] B.C.T.C. Uned. 1117; 2013 BCSC 1117, refd to. [para. 63].

Bear et al. v. Merck Frosst Canada & Co. (2011), 385 Sask.R. 76; 536 W.A.C. 76; 2011 SKCA 152, refd to. [para. 64].

Frey et al. v. BCE Inc. et al. (2009), 334 Sask.R. 55; 2009 SKQB 165, refd to. [para. 77].

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321; 1997 NSCA 153, refd to. [para. 78].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 80].

Van Breda et al. v. Village Resorts Ltd., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 82].

Club Resorts Ltd. v. Van Breda - see Van Breda et al. v. Village Resorts Ltd.

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 83].

Counsel:

Robert J.C. Deane, for the appellants, Bell Inc., Bell Canada, Bell Mobility Cellular Inc., Bell Mobility Inc., and Microcell Telecommunications Inc.;

Kent E. Thomson, Maureen Littlejohn and Bruce Outhouse, Q.C., for the appellants, Rogers Communications Inc., Rogers Communications Partnership, Fido Solutions Inc., Rogers Cantel Inc., Rogers Wireless Inc. and Rogers AT&T Wireless;

Michael Peerless and Evatt F.A. Merchant, for the respondents.

This application and appeal were heard at Halifax, N.S., on February 19, 2015, by Bryson, Scanlan and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. On April 9, 2015, Scanlan, J.A., delivered the following reasons for judgment for the court.